Update on October Term 2012 and updated Stat Pack

Posted Fri, May 31st, 2013 9:30 am by Kedar Bhatia

This is another post in an ongoing series analyzing statistical trends at the Court. For a more complete look at the statistics that we collect on the Court, you can find all of our up-to-date charts and graphs here.

We are happy to present the fourth interim Stat Pack for October Term 2012. This edition features both updates to the information featured in the third Stat Pack and a few new tables and graphs. You can download the full Stat Pack here.

The Stat Pack reveals several interesting trends, some of which are discussed below.

Opinion Authorship: In the race to release majority opinions, Justice Ginsburg has pulled away from her colleagues. She has now released eight majority opinions, including one five-four opinion and one six-three opinion. She is also the first Justice to release one majority opinion from each sitting during OT12. Justice Breyer is in second place with six majority opinions, and Justices Kennedy and Alito have the fewest, with three majority opinions apiece. (Page 2).

Justice Scalia has authored the greatest number of total opinions, thirteen. His tally of dissenting opinions alone, six, is greater than the majority opinion output of all but two of his colleagues, Justices Ginsburg and Breyer. The Chief Justice, who tends to author a relatively low number of dissenting opinions, has already equaled his total output of dissenting opinions for all of OT11, with four. Justice Kennedy, who wrote only two dissenting opinions last Term, has not yet authored any dissents this Term.

The Chief Justice has written five majority opinions for the Term, with all five coming in cases with unanimous votes. By contrast, during OT11 he authored seven majority opinions, only two of which came in unanimous cases. Justice Ginsburg has seen a similar shift, with six of her eight majority opinions during OT12 garnering unanimity; by contrast, she had seven majority opinions last Term, but only three were unanimous.

Although Justice Scalia did not author any majority opinions in five-four cases during OT11 — despite being in the majority nine times — he has already authored two five-four majority opinions during the current Term. On the other hand, Justice Kennedy has not yet written any five-four decisions this Term, despite being in the majority in seven five-Justice majorities. Of course, that authorship role likely to increase as the Court nears the end of the Term and releases decisions in several high-profile cases. (Page 11). June is likely to be a month in which the Court is closely divided in many cases: during OT11, the Court released seventeen opinions in June, fourteen of which had at least one dissenting opinion.

Circuit Scorecard: The Sixth Circuit, which was affirmed only once in its twenty-three cases at the Supreme Court between OT08 and OT11, was reversed twice this Term in its only two cases at the Court. That brings the circuits record over the past five Terms to twenty-four reversals in twenty-five cases, a 96% reversal rate. The average for all circuits during the same time period is 74%, with the Sixth, Eighth (92%), and Ninth (80%) Circuits being reversed the most often and the First (40%), Tenth (44%), and D.C. (60%) Circuits being reversed the least often. (Page 3).

Pace of Opinions: The Court is falling behind slightly on its usual pace of opinions. Going into June, the Court has twenty-eight cases remaining for the Term. If previous trends hold true, it will also release one or more summary reversals before the end of June.

While the Court has quite a task ahead of it, releasing around thirty merits opinions in June is not unprecedented. During OT10 and OT09, the Court released thirty-three and thirty-two merits opinions, respectively, in June.

Time Between Grant and Oral Argument: This edition of the Stat Pack features small but important tweaks to the “time between” tables on pages 14 and 15. The most important change is the addition of cross-Term breakdowns for different time intervals. For example, the “Time Between Grant and Oral Argument” sheet now shows the number of cases that were argued less than one hundred days after being granted during the past three Terms, as well as the number that were heard in 100-124 days, 125-149 days, and so on. The table reveals that during OT12 the Court heard five cases less than one hundred days after they were granted, compared with only one such case during both OT10 and OT11.

The Court’s timetable for merits-stage briefing spans 112 days, so it generally tries to give counsel at least that much time between granting certiorari and arguing a case. Occasionally, the Court finds itself without enough cases to fill a sitting or the Term, so it will grant petitions and be forced to expedite the briefing schedule. This phenomenon most recently occurred in a large number of cases during OT07, when counsel in thirty-two cases had fewer than 112 days between the grant of certiorari and oral argument. More recently, during OT10, counsel in twelve cases worked on an expedited briefing schedule and, during OT11, counsel in only five cases were in the same position. During OT12, however, the Court required counsel in a staggering thirty cases (forty percent of all cases argued) to file at least one round of briefs sooner than was provided for in the rules.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.